What is currently unclear in probate law is the ownership rights to digital data and how those rights are transferred upon the death of the owner. This lack of clarification of the law comes about because of a dearth of useful legislation pertaining to this issue in probate and a lack of court decisions because the area of concern is so new. A complicating factor is the complexity of the so-called "license agreements" usually automatically imposed by online storage providers and how these agreements interact with the probate laws and procedures.
First of all, I should say that probate law and procedures can be hugely complicated. Whether you live in the United States or any other country, the regulation and taxation of both real and personal property upon death involves both anciently imposed customs and traditions as well as more modern legal tinkering. Additionally, in the United States, for example, the probate laws and procedures are far from uniform and how the probate proceeds is locally determined.
I will start with a hypothetical situation to illustrate some of the issues.
Genealogical researcher John Doe spends his whole later life accumulating a vast amount of information about his ancestors. Diligently following the best practices of his day, he digitizes all of his documents and stores the resulting data on huge external hard drives. He is active in the online genealogical community and writes about his family in an online blog, sharing the documents and much of his research. Over the years he has also been connected to Facebook, Twitter, Google+ and many other online resources. He has posted the bulk of his information to WeRelate.org, Ancestry.com, MyHeritage.com and Geni.com and several other sites. He has contracted with an online backup company and a copy of his entire files is stored online. Additionally, he has been involved in teaching and has been the subject of numerous webinars, interviews, online videos, forums and other online activities. Of course, for the past few years, Doe has been accumulating a huge file of email messages.
As it happens to us all, Doe dies. Before his death he diligently provided for his wife and family and made a will and also transferred most of his property, including all his real property, into a testamentary trust. His will has a sweeping residual clause that includes any and all property owned at his death.
Now, is there any way at all for the administrator or personal representative of his estate to untangle Doe's huge online involvement? What rights do his heirs have to his online heritage? Doe he actually have any ownership interest in the webinars, interviews and other online activities? What about the email files? Which of the heirs inherits the online files? Do they each get a copy? Is the estate obligated to maintain the online accounts until these issues are settled? Who has the authority to use Doe's logins and passwords? What if Doe is using a program that automatically generates a long password? How do the heirs determine what password was used with which program? In practical, real life situations, what happens to all the research he put online in family trees? All of these are valid questions and largely unanswered by the state of the probate law in the United States.
If you were to consult an "estate attorney," even one in a large prestigious big-city law firm, about this subject, you would likely get a lot of sage advice based on absolutely nothing but conjecture. If you were to start asking all these questions, it is likely that you would get a statement such as, "Well, we will just have to face that issue when it arises" or something similar.
To illustrate my statements, here is a recent assessment of the status of digital assets legislation from the Digital Estate Resource:
To date five states have enacted laws that relate to digital assets with regard to estate planning. The earliest from Rhode Island and Connecticut are limited in scope to email accounts. A 2007 statute from Indiana includes “electronically stored documents of the deceased.” A 2010 statue from Oklahoma covers the broader notion of digital assets. In 2011 Idaho passed a bill based upon the Oklahoma one.In searching the Web on this subject, I found some articles from supposed authorities in this area that gave absolutely wrong advice, such as keeping copies of the passwords and logins in a bank safety deposit box. Why is this a problem? Once most banks are put on notice of a death, they will not allow access to a safety deposit box without the appointment of an administrator or personal representative of the estate. Thus, the surviving relatives cannot gain access to the online accounts until some considerable time after the death. If the online authorities are giving out bad information, where does that leave the uninitiated?
So what action do the heirs of Doe take to untangle the mess? That is reason for these blog posts. The law has yet to catch up with the reality and it may be some time before there are clear answers to the issues raised by my hypothetical. This is a huge area of the law that is just now developing and one that genealogists should acutely be aware of. Here is a not-too-comforting statement from the American Bar Association:
Although powers of attorney are powerful tools, those who work in the digital asset world are at the beginning stages of determining how conventional estate planning tools affect on-line accounts and other types of digital assets.All this should make you think about how you personally are going to address the issues raised.